A Supreme Court decision that undercuts the presumptive rights of biological Native American parents could threaten an entire slate of legislation passed almost 40 years ago to strengthen tribal sovereignty, according to a former South Dakota senator.

The 1978 Indian Child Welfare Act is intended to keep Indian children from being taken from their homes and placed with non-Indian adoptive or foster parents. The law’s intent is to preserve familial bonds between Indian parents and their children and tribes and their children.

“It’s an attack on tribal sovereignty through the children. I can’t believe they did this,” retired Sen. James Abourezk, D-S.D., who was the driving force behind the 1978 Indian Child Welfare Act and the other bills, said Tuesday of the court’s decision.

In a 5-4 ruling, the court said federal law doesn’t require that a Native American child be taken away from her adoptive parents and given to her biological father. The court sent the case back to the South Carolina courts, which had decided in favor of the father, a member of the Cherokee tribe who had given up parental rights.

The non-Indian couple who raised the girl, called Baby Veronica in the suit, for her first 27 months appealed the state decision. The Supreme Court’s intent was to allow the couple to adopt the now-3-year-old girl. Veronica is 3/256ths Cherokee.

Professor Frank Pommersheim of the University of South Dakota School of Law said the main thing the justices did was create confusion about the application of the Indian Child Welfare Act.

And Daniel Sheehan, general counsel for the Lakota People’s Law Project, suggested the Supreme Court ruling could point the way toward a resolution that strengthens tribes’ rights in adoption issues.

Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Stephen Breyer joined Justice Samuel Alito, who wrote the majority opinion.

Justice Sonia Sotomayor wrote the dissenting opinion. She was joined by Justices Antonin Scalia, Ruth Bader Ginsburg and Elana Kagan.

In his opinion, Alito said the federal law didn’t apply in this case because the biological father never had custody of the girl and abandoned her before birth. The father, Dusten Brown of Oklahoma, objected to the adoption only after the fact. Furthermore, he said the law doesn’t stop non-Native Americans from adopting the child if no other eligible candidates stepped forward.

Giving the father the presumptive right to custody outlined in the law, which the justices refer to as the ICWA, “would put certain vulnerable children at a great disadvantage solely because an ancestor -- even a remote one -- was an Indian,” Alito said. “A biological Indian father could abandon his child in utero and refuse any support for the birth mother -- perhaps contributing to the mother’s decision to put the child up for adoption -- and then could play his ICWA trump card at the 11th hour to override the mother’s decision and the child’s best interest.

“If this were possible, many prospective adoptive parents would surely pause before adopting any child who might possibly qualify as an Indian under the ICWA,” Alito wrote.

Tribal sovereignty

Congress was trying to solve a different problem when it passed the Indian Child Welfare Act, Abourezk said. The Senate American Indian Policy Review Commission he headed “had complaints about tribes being stripped of children by white social service agencies.”

The great majority of these were from the Southwest and involved adoptions from members of the Church of Jesus Christ of Latter-day Saints, Abourezk said.

Clyde Bellecourt, an American Indian Movement activist who was a key player in the effort to develop and strengthen the principle of tribal sovereignty in the 1970s, agreed with Abourezk. He said the Supreme Court ruling “is legalizing the kidnapping, theft of children and division of Indian families once again by states and churches. Churches have a lot to do with this.”

Because of widespread adoptions of tribal children by non-Indians before the law, Bellecourt said, “there are thousands of people wandering the earth who have no idea from whence they came even though they have a culture and a traditional way of life of their own.”

Peter Lengkeek, a former member of the Crow Creek Tribal Council, challenged the South Dakota Department of Social Services for running roughshod over the Indian Child Welfare Act when he was on the council.

“I got a lot of complaints about the way DSS was coming onto the reservation without permission and carrying on the way they did,” Lengkeek said. “Mothers would tell me their child was taken and nothing was said or done about it or proper protocol was not followed.”

From this perspective, he views the Supreme Court decision as an attack on a law that is important for maintaining the integrity of Indian families and Indian children’s tribal identity.

“The Indian Child Welfare Act was put in place to preserve culture and the traditional way of life of indigenous people. The Supreme Court decision really undermines the whole concept,” he said.

“We have to fight on a daily basis for protection and strengthening of our sovereignty,” Lengkeek said. “When things like this happen, it weakens it even more. I hope all the tribes are looking at this and taking it to heart. It could change their future.”

The Indian Child Welfare Act is in line with similar laws to bolster tribal sovereignty, Abourezk said.

“That was our aim. We did everything we could to increase tribal sovereignty. That includes the Indian Child Welfare Act; the Self Determination Act,” passed in 1975; the Freedom of Religion Act, passed in 1978.

Abourezk said he fears the Supreme Court’s refusal to uphold the Indian Child Welfare Act could potentially set precedent leading to legal attacks on other aspects of tribal sovereignty.

Pommersheim said he is not convinced the Supreme Court decision strikes at tribal sovereignty because it is inherently confusing. The Supreme Court majority’s narrow interpretation of the statute seems to say the Indian Child Welfare Act is intended primarily to avoid the breakup of Indian families. Then it says the Indian father in the South Carolina case had his parental rights terminated.

“The statute applies, but this father has no rights under the statute,” Pommersheim characterizes the ruling. “You can’t make that fly. It seems to flout common sense.”

Could help tribes

It also points the way toward a resolution that strengthens the rights of tribes in adoptions, according to Sheehan.

He and Pommersheim both were persuaded by Justice Sotomayer’s dissenting opinion that an important goal of the law was ensuring tribes did not lose children to a dominant white society, and tribal parents do not lose the connection with their children even if they do not have custody of them.

The Supreme Court ruling flouts the intent of Congress when it passed the law, Sheehan said. The answer is to enact what tribal leaders such as President Brian Brewer of the Oglala Sioux Tribe want to see happen.

In April, Brewer wrote Bruce Loudermilk, Great Plains regional director for the Bureau of Indian Affairs, pointing out that the South Dakota Department of Social Services regularly ignores the Indian Child Welfare Act. The law requires social-service agencies adhere to the principle that Indian children belong with their tribes and agencies actively seek to ensure this in adoptions and foster placements.

Brewer also mentioned that the federal government does not finance foster care on reservations adequately.

“We Sioux tribes constitute a sovereign nation, and we must assert ourselves when it comes to foster care and adoption policy,” Brewer wrote.

“The Oglala Sioux Tribe … is very eager to develop a direct relationship with the federal government when it comes to the provision of foster care services for our children.”

Exactly, Sheehan said.

“The solution to this hostile attitude toward the basic intent of ICWA is to give direct federal funding to the individual tribes to set up their own foster care with adequate oversight and get the state completely out of it,” he said.

He predicts all nine South Dakota tribes will adopt such a stand at a meeting July 8 to 10.

This site contains links to other web sites that may be of interest to you. The Administration for Children and Families (ACF) / Children's Bureau (CB) does not endorse the views expressed or the facts presented on these sites. Their contents are solely the responsibility of the authors and do not represent the official views or policies of the Children's Bureau. Access to this information does not in any way constitute an endorsement by the Department of Health and Human Services. Furthermore, ACF/CB does not endorse any commercial products.